Com. v. Kelley

• Decision Date: 18 March 1971
• Citation: 359 Mass. 77,268 N.E.2d 132
• Parties: COMMONWEALTH v. John J. KELLEY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 132

268 N.E.2d 132

359 Mass. 77

COMMONWEALTH v. John J. KELLEY, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 2, 1971.

Decided March 18, 1971.

Walter J. Hurley, Framingham Centre (John L. Murphy, Jr., Boston, with him), for the defendant.

Ruth Abrams, Asst. Atty. Gen., for the Commonwealth.

Before TAURO, C.J., and SPALDING, CUTTER, SPIEGEL and BRAUCHER, JJ.

BRAUCHER, Justice.

The defendant was charged, in an indictment returned April 22, 1965, with the crime of conspiracy. He was tried before a jury, convicted and sentenced, and the case is here on his exceptions. Sentence was stayed by the trial judge pending his report to this court of questions on the sufficiency of the indictment. Those questions were answered in COMMONWEALTH V. KELLEY, MASS., 260 N.E.2D 691.^{A 1} The exceptions relate to (1) denial of the defendant's motion to quash the indictment, (2) the trial judge's ruling that a prima facie conspiracy had been established, resulting in the admission as evidence against the defendant of the acts and declarations of alleged coconspirators, (3) admission of evidence of a crime not charged in the indictment, (4) denial of the defendant's motion for a directed verdict, (5) denial of the defendant's requests for instructions to the jury, and (6) conduct of the trial judge reflecting adversely on objections made by the defendant's counsel.

THE INDICTMENT.

The indictment charged that: 'John J. Kelley, Jr., and Highway Traffic Engineers, Inc., a Massachusetts Corporation, * * * did conspire together and with William F. Callahan, now deceased, who was then an executive officer of the Commonwealth to wit; the Chairman of the Massachusetts Turnpike Authority, * * * and with Edgar F. Copell and Thomas D. Connolly, all of whom are named herein as co-conspirators, but not as defendants, to use the economic power of the said Massachusetts Turnpike Authority * * * to cause to be paid to the said Kelley, who was then the son-in-law of the said Callahan, large sums of money to which he was not entitled, by the following means: by causing the award of contracts by the said Massachusetts Turnpike Authority to the said Highway Traffic Engineers, Inc., to be conditioned upon the said Kelley being paid a salary by the said Highway Traffic Engineers, Inc., * * * for which the said Kelley was to do no work, and upon the said Kelley becoming the owner of one-half of the outstanding common stock of the said Highway Traffic Engineers, Inc. * * *; by the request and acceptance by said Callahan of a promise to do an act beneficial to him under an agreement and with an understanding that the vote, opinion and judgment of the said Callahan would be given in a particular manner and on a particular side of a question, cause and proceeding, which was or might be by law brought before him in his official capacity, and as consideration for speech, work and services in connection therewith; * * *.'

Portions of the indictment omitted from the above quotation charged as additional 'means': (1) that Kelley was to receive salary from two additional corporations, Denman Electronics Corp. (Denman) and Highway Equipment Co., Inc. (Equipment), as well as from Highway Traffic Engineers, Inc. (Traffic), (2) that he was to become an owner of stock in all three corporations, and (3) stealing money of the Massachusetts Turnpike Authority (Authority). At the close of the evidence the Commonwealth conceded that no evidence of larceny by the defendant was introduced at the trial, and the judge instructed the jury not to consider the part of the indictment referring to stealing. He also charged the jury that he had allowed evidence about Equipment and Denman 'merely to give you the advantage of getting the whole picture * * *.'

In answer to the questions reported by the judge, this court made several rulings. COMMONWEALTH V. KELLEY, MASS., 260 N.E.2D 691, 693--695(1)^B 'The sufficiency of the indictment does not depend upon whether evidence of larceny is presented at the trial. * * * It is sufficient if the evidence established any of the means alleged.' (2) 'Thus, the means as described in the indictment, would constitute crimes under G.L. c. 268, §§ 8 or 9, ² if William F. Callahan was then an executive officer of the Commonwealth; and they would constitute a crime under G.L. c. 271, § 39, ³ if he was not then an executive officer of the Commonwealth.' (3) 'We also hold that the object of the conspiracy was illegal and involved great danger to the public interest. * * * The conduct described in the indictment's allegation of the means for the accomplishment of the object of the conspiracy is impermissible and legally indefensible in the transaction of public business. The alleged object of this conspiracy, the subversion for private profit of the power of public office, is as unlawful as the means alleged.'

THE PROOF.

There was evidence of the following. Callahan was chairman of the Authority from 1952 to 1964, and usually presided at meetings. Kelley, the defendant, was Callahan's son-in-law at all relevant times. There was no competitive bidding so far as engineering contracts were concerned. Sixteen contracts with Traffic were approved by the Authority between July 14, 1954, and July 11, 1963. Most such contracts were first approved by the chief engineer of the Authority, but he was not consulted on the first four contracts with Traffic. The first contract, approved July 14, 1954, was received by Traffic about August 10, 1954. During 1955 to 1961 Traffic's gross receipts were about $2,800,000, and eighty-five per cent to ninety per cent of its work came from the Authority.

Copell, the chief witness for the Commonwealth, was a registered engineer and from 1954 to 1965 was president and project engineer for Traffic; its treasurer was Thomas D. Connolly (Connolly). In 1953 the officers of Traffic were Connolly and two others of that name; Copell was a consultant and solicited business for them. Traffic's gross receipts were $2,895.76 in 1953, $34,554.52 in 1954. Copell had worked for the Department of Public Works and had been in close association with Callahan, and had known the Connollys for twenty years. In the spring of 1954, Copell visited Callahan at the offices of the Authority to solicit business for Traffic.

After several such visits Copell had received no work. Then on one occasion Callahan said, 'We will give you some work.' Then Callahan said, 'I think you ought to have a partner.' Copell said, 'Well, what do I need a partner for?' Callahan said, 'Well, * * * I don't know * * * I think it would be well to have a partner. You ought to need some help out there to carry on, and so forth.' Copell talked it over with Connolly; the Connollys thought it over and later agreed; and Copell informed Callahan that they had agreed. At the next two or three meetings with Callahan, Copell asked who the partner was to be but Callahan said he didn't know. About a week before August 4, 1954, Callahan told Copell the partner was to be Kelley, that Kelley should have fifty per cent of the stock but share equally with Copell and Connolly in the profits, receiving one-third. At this time Traffic had received no contracts from the Authority.

On August 4, 1954, Kelley met with Copell and Connolly for a sale and redistribution of the outstanding shares of stock in Traffic. Kelley paid $2,000 for 100 shares, and Copell and Connolly each paid $1,000 for fifty shares. This meeting was the first time Copell had seen Kelley in maybe eight to ten years. Copell did not know how Kelley happened to be there; there was no conversation that he recalled except that of welcoming Kelley into the fold. At the time, Traffic was a going business. Kelley was not an engineer.

During 1955 and 1956 Kelley was retained by Traffic as a consultant to locate service areas along the turnpike; he participated in one report and received a total of $20,000 for both years. Another company submitted a final report in November, 1955. In 1957-1961 Kelley, Copell and Connolly were carried as weekly employees, but Kelley did no work for Traffic during that time; each received approximately $400 a week. At the end of each year Kelley would attend an annual meeting of the stockholders and officers of Traffic. Copell never discussed salary with Kelley except for the first consultation on service areas, and never spoke to him about his work for Traffic.

In 1960 the Internal Revenue Service (IRS) conducted an audit of the books of Traffic and assessed an additional tax based in substantial part on disallowance of nearly $33,000 of salary paid to Kelley for 1956, 1957 and 1958. Kelley was told of the IRS action; the matter was not discussed with him. Copell told Callahan, 'I felt we should have some help in paying this assessment,' and Callahan said, 'No, it is only money, get it up.' Copell said Traffic did not have the money, and Callahan said, 'Go out and get it; you can get it.' Traffic paid the additional tax, and Kelley never paid it back to Traffic. Callahan agreed to the reduction of Kelley's participation to $12,000, and Kelley's salary was reduced to $12,000 without discussion with Kelley.

On one occasion Callahan asked Copell why Kelley hadn't received his check. Copell said funds were not forthcoming from the Authority. Callahan said he would expedite things and added, 'You have agreed; live up to it. Get it up; and pay him.'

About 1960 or 1961 Copell told Callahan that Kelley should leave Traffic because there was a conflict of interest law on the books which made it impossible to continue with Kelley. Later Callahan said, 'I've talked with the attorneys and John, we agree, should resign.' He also said Kelley's 100 shares were worth $36,000. Copell replied that he thought that was high and that they didn't have that kind of money. Callahan told him they could get it and to dig it up. In August, 1961, Traffic, which then had assets of...